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JUDGMENT
BY COURT:
The Plaintiff by his Writ issued
on 13th October,
2008, claimed for himself and
other siblings and beneficiaries
of his deceased father the
following reliefs
(as on the writ):
1.
Order of Declaration of
Title/Ownership to Plaintiff of
all that piece and parcel of
land of 0.22 acres at La,
opposite Trade Fair the subject
matter of the instant suit as in
the Statement of Claim, and
bounded on the West by existing
road and measuring 113 feet on
the North by the Main Giffard
Trade Fair Road and measuring
120 feet, on the South by Land
of K. A. Laryea measuring 100
feet and on the East by land of
Sowah and measuring 74 feet.
2.
Order of Declaration that the
sale agreement between 1st
and 2nd Defendant is
null and void and be set aside
of being of no effect.
3.
Further Order of Recovery of
possession of same by Plaintiff.
4.
Order of Declaration of
Perpetual Injunction against
Defendants and their agent.
5.
General damages.
6.
Cost.
The Statement of Claim that
accompanied the Writ disclosed
that the Plaintiff’s deceased
father had a lease from Nii
Adjei Boahen, and same was
registered at Lands Commission
and issued with Land Title
Certificate No GA15956.
That in 2001, the 2nd
Defendant approached his late
father with a fictitious and
fraudulent document for an
assignment of a part of the land
aforesaid, measuring 120 feet by
100 feet. That 0.22 of an acre
of his father’s land, measuring
0.32 of an acre was assigned to
the 2nd Defendant.
By paragraph 3 of the
Plaintiff’s Statement of Claim,
the document that covered the
transaction between the
Plaintiff’s father and the 2nd
Defendant was described to be
fictitious and fraudulent. That
his late father’s signature was
procured by fraud. The
particulars of fraud was pleaded
and will be referred to in due
cause.
The 1st Defendant
entered appearance and filed a
defence to the claim and
counter-claimed as follows:
a)
Declaration that the transaction
between first Defendant and
second Defendant is lawful and
valid.
b)
Declaration of title.
c)
Order of Perpetual Injunction
against Plaintiff and his agents
and assigns restraining them
from interfering with first
Defendant’s lawful enjoyment of
its property.
d)
Damages.
e)
Cost.
The 1st Defendant’s
case as disclosed by its
statement of defence is that it
entered into a sales transaction
with 2nd Defendant
after it had conducted due
diligence. It also pleaded that
it was not aware of the fraud
pleaded in the Plaintiff’s
paragraph 3 and was not also
privy to it.
The Plaintiff’s Counsel
submitted that there is evidence
that the 2nd
Defendant was served with the
writ, but she did not file any
process. The 1st
Defendant’s Counsel also
submitted that the 2nd
Defendant was not served with
any process. From the docket,
it is revealed that it was only
the 1st Defendant,
who was served with the Writ and
the Statement of Claim on 14th
October, 2008.
There is also on the docket a
search report conducted by the
Plaintiff on 27th
November, 2008. The result of
the search shows that only the 1st
Defendant was served. The
answer to the 1st
question on the search report
might have led the Plaintiff to
believe that the Defendants were
served. The questions on the
search are as follows:
I.
Whether or not the Defendants
have been served with the Writ
and Statement of Claim
Answer – Yes.
II.
And if so, when and on whom
(names) were the services
effected
Answer - (a) 14th
October, 2008.
(b) Kpogas
Standard Furniture. Through
Adei K.
III.
And whether any appearance has
been entered on behalf of any
Answer – Yes.
IV.
And if so when
Answer – 13th
November, 2008.
Since the answer showed that it
is only the 1st
Defendant that had been served
at the time, the Plaintiff was
under an obligation to serve the
2nd Defendant. If
the Plaintiff knew the 2nd
Defendant had been served, he
would have taken Judgement
against 2nd Defendant
under Order 10 Rule 4 (1) of
C.I. 47. In this case, the
Plaintiff did not apply for
Judgement, but rather proceeded
against the 1st
Defendant. Since the record
revealed that the 2nd
Defendant was not served with
the Writ of Summons and the
Statement of Claim, the
Plaintiff cannot obtain
Judgement against the 2nd
Defendant.
In the case of Barclays Bank,
Ghana Ltd vrs. Ghana Cables
Company Ltd.
(1998-99) SC GLR 1, the Supreme
Court held in its first holding
that “A Court has generally no
jurisdiction to proceed against
a party who has not been
served….”
Since this case, the Plaintiff’s
own search report reveals that
the 2nd Defendant was
not served; judgement cannot be
entered against her.
From the Plaintiff’s pleading,
it is reveled that the issue of
fraud was leveled mostly against
the 2nd Defendant.
Paragraph 3 of the Plaintiff’s
Statement of Claim is as
follows:
“Plaintiff further says that in
2001, the 2nd
Defendant approached their late
father with a fictitious and
fraudulent document for an
assignment of a part of the land
aforesaid and measuring 120 feet
by 100 feet and covering .022
acres out of the original 0.32
acres per an assignment of 1st
August, 2001 through the
fraudulent procurement of their
late father’s signature.
The particulars of the fraud
were given as follow:
I.
Preparation and presentation of
incomprehensible document to
their late father to execute
with the connivance of officials
of Land Commission.
II.
Presentation of unwieldy
document to their late father
which contained no specific term
of the assignment nor even the
rent payable and the due dates.
III.
Sale of the property with
alacrity to 1st
Defendant Contrary to the terms
of the Assignment, without the
knowledge or consent of their
late father or the Plaintiff,
contrary to the terms of the
alleged assignment.
IV.
Failure to pay rent on due dates
since 3 years ago.
V.
Rejection by Lands Commission to
accept and register the
transaction between the
Defendants because of absence of
consent of the Plaintiff.
The 1st Defendant's
defence to the Plaintiff's
paragraph 3 is as in its
paragraphs 2 and 3 of the
statement of defence which is as
follows:
2. First Defendant cannot deny
or confirm paragraph 3
3. First Defendant says that it
was not privy to the alleged
transaction between the
Plaintiff’s late father and the
second Defendant; either deny or
confirm any claim that connected
to the transaction including the
particulars of fraud.
Since particulars I to IV
concerned the Plaintiff and the
2nd Defendant, and
the 2nd Defendant was
not served with the processes,
it does not lie in the mouth of
the Plaintiff’s Counsel to
submit that the 1st
Defendant had not been able to
deny the averments and the
particulars of fraud in
paragraph 3 of his Statement of
Claim. Since it was the
Plaintiff who averred these
facts in his pleading he was
bound to prove same.
From the evidence of the
Plaintiff I do not see how the
Plaintiff proved these
assertions in his paragraphs 3.
The Plaintiff tendered exhibits
‘B’ as the lease from Nii Adjei
Boahen II and his father.
Exhibit ‘B’ shows that the land
was leased to Plaintiff's father
on 1st December,
1999, and it covered 0.30 of an
acre but on
the Site Plan which was
attached, it stated 0.35 of an
acre. It was to be effective
from 3rd January,
2000, and was numbered
AR/3945/2000 with land valuation
number LUB 2202/2000. It was
also signed by his father.
Exhibit ‘B’ is the Land Title
Certificate and on it the
acreage is 0.32 of an acre. The
Plaintiff also tendered exhibit
‘C’ which was signed by the
Plaintiff’s father, but was not
executed. In exhibit ‘C’ it is
revealed that part of exhibit
‘B’ is alleged to have been
assigned by the Plaintiff’s
father to one Hilda Akusika
Agyeman. In exhibit ‘C’ the
root of the Plaintiff’s father’s
title was quoted. It included
the name of Nii Adjei Boahen II,
the date of exhibit ‘B’ being 1st
December, 1999. The effective
date was said to be 3rd
January,2000 and the Number of
exhibit ‘B’ being AR/3945/2000
and LUB 2202/2000. The 1st
Defendant also tendered exhibit
‘3’ which is the executed copy
of exhibit ‘C’. Exhibit ‘3’
shows that it was executed on 1st
August, 2001. All the
particulars in Exhibit ‘B’ which
were reproduced in Exhibit ‘C’
also appeared on exhibit ‘3’.
It was signed by the Plaintiff’s
father and the oath of proof
said Kwame Anang Laryea can read
and write. The Greater Accra
Regional Chairman of the then
Lands Commission gave his
consent to the transaction on 4th
October, 2001.
Since in Exhibit ‘3’, it is the
Plaintiff’s father who assigned
0.22 of an acre of his land to
the 2nd Defendant,
and the particulars of exhibit
‘B’ were reproduced in exhibits
‘C’ and ‘3’, and no evidence was
led that exhibit ‘B’ had been
stolen, the Plaintiff cannot
plead that it was a fictitious
and fraudulent document given to
his father to sign.
It is on record that when the
photocopy of exhibit ‘B’ was
tendered the original was
produced and compared with the
photocopy before it was
admitted. Since it was the
Plaintiff’s father who assigned
part of his land, it is deemed
that he used exhibit ‘B’ to
prepare exhibit ‘3’ and
thereafter kept the original.
He also did not only prepare,
but also signed it since he was
a person who could read and
write. The Plaintiff did not
also lead any evidence to show
the matter that constituted
fraud with regard to the
procurement of his father’s
signature.
The oath of proof of Emmanuel
Aryetei shows that he Emanuel
Aryetei was present and saw the
Plaintiff’s father execute
exhibit ‘3’. I therefore hold
that particulars (i) has not bee
proved. Instead, the evidence
before the Court indicates that
it was the Plaintiff’s father
who prepared exhibit ‘C’ or ‘3’.
With regard to particulars
(ii), exhibit ‘3’ negates it.
Exhibit ‘3’ shows that it was
effective from 1st
August, 2001. The agreed rent
was stated to be ¢100,000.00
i.e. GH¢10.00 but the Land
Commission revised it to
¢110,000.00 i.e. GH¢11.00. That
it was the unexpired period of
97 years 5 months out of the 99
years that the Lands Commission
gave its concurrence to.
Particulars (iii) said no term
was given but since both
exhibits ‘C’ and ‘3’ said it was
an assignment, there was no need
to mention the duration.
An assignment simply means
transferring an unexpired
interest in a lease to another
person. Clause 2 of exhibits
‘C’ and ‘3’ said “WHEREAS the
lessor has agreed to assign, out
of the property to the Lessee….”
Since it’s an assurance of a
Stool Land, the transaction
cannot be valid without the
consent of the Minister of Lands
as required by the
Administration of Lands Act 1962
(Act 123). The case of Omaboe
III and others vrs.
Attorney-General and Lands
Commission (2005-06) SC GLR 579
makes it clear that there can be
no disposition of an interest in
Stool Land, and no development
thereof unless the Regional
Lands Commission of the region
in which the land is situated
has certified that such and act
is consistent with the
development plan approved by the
Planning Authority for the area
concerned. Again, under
article 267(5) of the 1992
constitution, the stools cannot
subject to other provisions of
the constitution create and
transfer a freehold interest in
Stool Lands to any person
without the consent and
concurrence of the Lands
Commission, even though the
Lands Commission cannot also by
itself create any interest in
Stool Lands.
In this case the Lands
Commission gave its consent to
an assignment of the unexpired
interest in exhibit ‘B’ to the 2nd
Defendant. I have noticed that
in exhibit ‘3’ it was stated in
the schedule above referred to,
that a term of 60 years from 1st
August, 2001 was written. The
Plaintiff did not however make
it one of its particulars to set
aside the transaction. No
evidence was also led on it. On
the contrary the Plaintiff said
no specific term was given, but
exhibit ‘3’ shows the contrary.
Reading exhibit ‘3’, there is no
section where reference was made
to a schedule. The heading “The
Schedule Above” referred to is
therefore incomprehensible with
exhibit ‘3’. Again normally in
documents of this nature, the
practice is that the schedule
gives a description of the
subject matter of the
assignment, but not the term
granted. Since in exhibit ‘3’
no reference had been made to a
schedule so as to use the years
mentioned in it as the period
agreed on, but the parties had
from the body of exhibit ‘3’
intended an assignment, Lands
Commission gave its concurrence
to an assignment, but not to a
sublease.
Whilst the Plaintiff was under
cross examination, he admitted
that the transaction between his
father and the 2nd
Defendant was an assignment. In
the case of BRUTUW vrs. AFERIBA
(1984-86) I GLR 25 and Dzotepe
vrs. Hahormene III (1987-88) 2
GLR 681, the Court of Appeal and
the Supreme Court respectively
held that a judgement obtained
by fraud was no judgement, but
to succeed in setting such
Judgements aside, the facts
alleged to constitute the fraud
must be exactly given, and the
allegation established by strict
proof. Fraud was an issue of
fact to be determined by the
Court.
In this case the particulars of
fraud pleaded did not include
the fact that exhibit ‘C’ or
exhibit ‘3’ was a sublease.
Rather the pleadings referred to
exhibit ‘C’ or ‘3’ as an
assignment. I have however
decided to consider the import
of exhibit ‘3’ being a lease or
an assignment because of the
inclusion of 60 years duration
in the schedule. Holding 2 in
Amuzu vrs. Oklikah (1998-99) SC
GLR 141, says that even when
fraud has not been distinctly
pleaded as the practice
requires, having regard to the
provisions of sections 5,6, and
11 of the Evidence Decree 1975,
(N.R.C.D 323) regarding
the reception of evidence not
objected to the Court cannot
ignore such evidence if there is
clear evidence of fraud.
In this case, had it not been
the introduction of a period of
60 years in the schedule, which
schedule had not been referred
to anywhere in exhibit ‘3’, not
the slightest indication of a
sublease would have arisen.
Since the parties in exhibit ‘3’
themselves describe their
transaction as an assignment,
and the Plaintiff per exhibit
‘E’ also described the
transaction between his father
and the 2nd Defendant
as an assignment, The Chairman
of the Lands Commission was
right in giving consent to the
transaction as an assignment,
since that was what the parties
intended. Before the death of
the Plaintiff’s father, no steps
had been taken to rectify
exhibit ‘3’ to make it a
sublease, and the 2nd
Defendant has assigned it to the
1st Defendant I
cannot at this stage rectify it
as no application had been made
for its rectification.
I therefore hold that exhibit
‘3’ is not fraudulent, as the
Plaintiff had failed to proof
fraud by the 2nd
Defendant on the Plaintiff’s
father, who owned the land
before exhibit ‘3’ was
executed.
The Plaintiff had also argued
that because the 2nd
Defendant did not seek its
consent before assigning part of
the land to the 1st
Defendant, the transaction
between the 1st
Defendant and the 2nd
Defendant must be set aside.
Counsel for Plaintiff has argued
that because the land the
subject matter of this dispute
is family property, exhibits ‘5’
and ‘6’ should be disregarded as
these are consent needed for
assurances of Stool Lands, but
not family lands as he claims
the land in dispute is. In
exhibit ‘B’ which is the root of
the Plaintiff’s claim, the
lessor, Nii Adjei Boahen II was
described as Nmati Abonase
Mantse of La, and he acted with
consent and concurrence of the
principal Elders of the
Quarter. It was also stated
that for the valid grant of the
Quarter’s land the principal
Elders of the Quarter was
necessary to make it valid. It
was never stated that the land
was family land. Adjei Boahen
II signed exhibit ‘B’ as
quarter land, but not as family
land. The chairman of the
Greater Accra Regional Lands
Commission gave concurrence on 5th
April, 2001, and revised the
payable rent to ¢105.000.00
instead of the agreed rent of
¢20,000.00 per year. P.W.1 is
therefore estopped from saying
that the land is family land.
In the case of In Re: Koranteng
(deceased) Addo vrs. Koranteng
and Ors. (2005-06) SC GLR 1039,
it was held in holding 2 that
under Section 25 (1) of the
Evidence Decree 1975 (N.R.C.D.
323), the facts recited in a
written document were
conclusively presumed to be true
as between the parties to the
document or their successors in
interest. Section 25 (1) had
the effect of establishing an
estoppel by written document
which was applicable to the
facts of the instant case……….”
Since in exhibit ‘B’ P. W.1 and
Plaintiff’s father signed it as
Quarter Land; P. W. 1 is
estopped from saying now that
the land is family land.
Should the 2nd
Defendant sought for the
Plaintiff’s consent before
assigning the land? I am of the
view that the consent should
have been sought from Adjei
Boahen II Nmati Abonase Mantse
of La or his successor. This is
based on the fact that once
there is an assignment, the
original owner transfers all his
interest to the subsequent
holder. Clause 2 ‘g’ of exhibit
‘B’ says “Not to assign, sublet
or part with possession of the
demised land or any part thereof
without the prior consent in
writing of the lessors, such
consent is not to be
unreasonably withheld.
Even though the same covenant is
repeated in clause 4 of exhibit
‘3’ since the Plaintiff’s father
had assigned his interest to the
2nd Defendant, she
should have asked for the
written consent from the
original Grantors.
There is no evidence that the 2nd
Defendant asked for the prior
consent from the original owners
before transferring all her
interest to the 1st
Defendant. This evidence is
lacking because the 2nd
Defendant was not served with
the processes. The evidence of
P.W.1 however shows that the
Plaintiff’s father also did not
seek the written consent of his
grantors before assigning part
of the land to the 2nd
Defendant. P.W.1 answered the
following questions in his
evidence in chief.
Q. Are you aware that the land
you gave to the Plaintiff’s
father has changed hands?
A. No. We gave it to him to
build a house on it, and all
that we know is to build a house
on it and not to transfer it to
any other person.
Since in exhibit ‘B’ the
Plaintiff’s father was not to
assign without a written
consent, but he had assigned
part of the land to the 2nd
Defendant without asking for the
consent of P. W. 1 the Plaintiff
cannot complain that the 2nd
Defendant had not taken consent
from his father or himself. If
anybody should complain it
should be P.W. 1, but he had not
complained. In Acquah vrs Oman
Ghana Trust Holdings Ltd,
(1984-86) 1 GLR 157, the Court
of Appeal held in its holding 1
that on principle of public
policy, nobody should be allowed
to take advantage of his own
wrong. If in truth ‘O’ made the
alterations or improvements they
were in breach of their covenant
in the lease which obliged them
to have obtained the prior
consent in writing of
Acquah……..”
In this case clause 2 ‘g’ of
exhibit ‘B’ enjoined the
Plaintiff’s father to ask for
written consent before parting
with the whole or part thereof.
According to P. W.1, this was
not done, yet they are
complaining that the 2nd
Defendant had assigned without
their consent. It is my view
that the Plaintiff cannot do
that now. The Plaintiff’s
father took consent from Lands
Commission after he had assigned
part of the land. The evidence
is that Lands Commission has
also given consent to exhibit
‘3’. Again, exhibit ‘6’
indicates that the 2nd
Defendant asked for the consent
of the La Traditional Council,
though belatedly. As stated, it
is the traditional authority
that should have complained, but
they are not complaining.
Instead, the Traditional
Council, to which counsel Nii
Adjei Boahen II, Nmati Abonase
Mantse is a member, gave its
consent and predated it. In
Donkor vrs Alhasan (1987-88) 2
GLR 253, the Court of Appeal
relied on its decision in Ndoley
vrs Iddrisu (1979) GLR 559, and
held that “The State Housing
Corporation was aware of the
transaction, and since they had
ticitly agreed to the transfer
and the respondent had made full
payment for the house they could
not refuse their consent. In
any case since the appellant was
required to obtain that consent,
he could not use his own default
as a basis for refusing to
perform his part of the
bargain”.
In this case too, it is the
Plaintiff’s father who did not
ask for the consent of the
original grantors, before
assigning. The original
grantors are not complaining but
he, the son of the grantee is
complaining about prior consent
from the Grantors. This ground
of the fraud therefore fails.
On the ground of the 1st
Defendant not conducting
investigations, the 1st
Defendant tendered exhibit 4,
which is the result of a search
the 1st Defendant
conducted. The 1st
Defendant gave evidence that
they saw an advertisement in the
12th September, 2007
issue of the Daily Graphic.
This was tendered as exhibit
‘2’. The 1st
Defendant followed up with an
official search at Lands
Commission, Accra. The search
result is exhibit ‘4’. The
result of exhibit ‘4’ is the
same as the result in exhibit
‘D’. As a result of this, the 1st
Defendant acquired the land in
dispute. The results in
exhibits ‘D’ and ‘4’ are
official results from Lands
Commission Secretariat. Section
37 (1) of N.R.C.D 323 says “It
is presumed that official duty
has been regularly performed.
Since the search report in
exhibit 4 showed that the land
had been assigned to the 2nd
Defendant by the Plaintiff’s
father, the 1st
Defendant acquired it. In the
case of Ghana Ports and Harbour
Authority & Captain Zeim vrs.
Nova Complex Ltd, (2007-08) SC
GLR 806, the Supreme Court
considered section 37 (1) of
N.R.C.D. 323 and held that “The
common law rule of presumption
“Omnia praesumuntor rite et
solenmiter esse acta has gained
statutory recognition under
section 37(1) of N.R.C. D. 323.
Since the 1st
Defendant did not rely on only
exhibit 2, but conducted an
official search at Lands
Commission Secretariat, the
official body that keeps records
of land transaction in Ghana,
and exhibit ‘4’ was supplied,
the Plaintiff’s claim that the 1st
Defendant failed to conduct due
diligence before entering into
the transaction with the 2nd
Defendant, has been proved to be
untrue. Issue ‘d’ which is
“whether or not the 1st
Defendant conducted proper due
diligence which failure has
rendered 1st
Defendant a trespasser on the
land” fails. I therefore
dismiss the Plaintiff’s claims.
On the 1st
Defendant’s counter claim, I
noticed that exhibit ‘1’ has not
been registered under the Land
Registry Act 1962 (Act 122) or
acquired a certificate under the
Land Title Registration Law 1985
P.N.D.C.L 152.
However, the 2nd
Defendant, who legally acquired
that land from the Plaintiff’s
father, registered her title.
Thereafter, she transferred it
to the 2nd Defendant
by signing exhibit ‘1’.
The case of Dacosta and others
vrs. Ofori Transport Ltd
(2007-08) SC GLR 602 says a deed
of grant or other assurance of
property takes effect
immediately upon its execution
by the grantor and passes the
property expressed to be assured
to the grantee although the
grantee has not executed or
assented to the deed……” In this
case the 1st and 2nd
Defendants have executed the
deed. The 2nd
Defendant has also not raised
any query to her transaction
with the 1st
Defendant. The non registration
of exhibit ‘1’ will therefore
not disentitle the 1st
Defendant from claiming
declaration of title to the land
in dispute. In the case of
Amuzu vrs. Okilikah (1998-99) SC
GLR, the Supreme Court discussed
the decision in Asare vrs.
Brobbey (1971) 2 GLR 331 and
held that the decision cannot
stand since it did not take into
consideration any equitable
doctrine or rule which could
ameliorate the harshness of the
statute ……….. While a party with
an unregistered document may be
unable to assert a legal title
in Court, nevertheless the
document will take effect in
equity and will defeat all
claims except the holder of the
legal title …..”
Since the legal title with
respect to the land in this case
is in the 2nd
Defendant, by virtue of the
assignment of the land from the
Plaintiff’s deceased father to
the 2nd Defendant,
and the 2nd Defendant
has also reassigned the residue
of the unexpired interest to the
1st Defendant, who
has developed same, and the 2nd
Defendant is not raising any
queries to her own assignment to
the 1st Defendant, I
grant the 1st
Defendant’s counter claim and
enter judgement for the 1st
Defendant as follows:
a)
That the transaction between the
1st and 2nd
Defendants is lawful and valid.
b)
That as between the Plaintiff
and the 1st
Defendant, title to the land in
dispute is declared in the 1st
Defendant.
c)
The Plaintiff, his agent,
servants, privies etc are
perpetually restrained from
interfering with the 1st
Defendant’s lawful enjoyment of
its property.
The claim far damages is
dismissed as the 1st
Defendant failed to proof any
damage caused to them. There
will be no order as to cost.
Counsel: Mr.
Foster Bonny for Plaintiff
Applicant.
Mr. Godwin Adagewine for 1st
Defendant.
(SGD.) MR. JUSTICE
S.H. OCRAN
Justice of
the High Court
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